Author Topic: Personal injury lawsuit after auto accident  (Read 890 times)

nick_mmm

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Personal injury lawsuit after auto accident
« on: August 06, 2018, 09:14:09 PM »
I was involved in an accident a few years ago which landed me in the hospital for a week with several injuries which required surgery and 6 months of physical therapy.  Both insurance companies found me 0% liable, and the at-fault driver was not injured. I am quite well all things considered; but still have some shoulder pain one rib with a likely permanent non-union.

I did reach out to an attorney some time ago, who is awaiting my decision-- the basics are that:
95K - Bills paid by my health insurance (which falls under ERISA subrogation)
12K - Lost wages/ medical bills paid by me.
30K - At-fault drivers liability coverage
100K - my underinsured motorist coverage
10%-33% of settlement - attorneys fees based on how much time is put into the case.

My employer health plan falls under ERISA law; which states they have a right to any settlement until they are 100% reimbursed, before anything (lost wages, attorneys fees, etc) can be recovered.

I have been presented with two options:
1) Sue the at-fault parties for amounts beyond insurance policy limits.

2) Settle- but before settling attempt to negotiate a reduction on the subrogation lien with health insurance\employer (not likely to succeed) to accept a smaller portion than 95K.

The at-fault driver is a complex situation involving three people- (driver, owner, insurance policy holder) and a likely sham title transfer after the accident. The owner did not have insurance on the vehicle (against state law), so only the driver/insurance policy holders 30K liability policy exists.

If I attempt to settle, I could be left with anywhere between ~10-50K.  If I sue, a lot of money could be in play; but at what cost to another family?  My conscience is getting the best of me right now and I would feel terrible taking what could amount to 100K+ of money from someone who does have much in terms of assets (based on legal discovery). I am not sure I could sleep well at night and that I want to go through the stress of a lawsuit.

How does one begin to make a decision like this?

Padonak

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Re: Personal injury lawsuit after auto accident
« Reply #1 on: August 06, 2018, 09:26:35 PM »
I would sue and get as much money as possible, especially if they tried to do something dishonest (you mentioned a sham title). You could have died or got severely injured in that accident. Luckily you didn't, but the accident was the other driver's fault and caused you a lot of trouble. In my opinion, you are entitled to a lot more than 100K in addition to medical, lost wages and other expenses paid. To me, this would be a risk vs return decision, plain and simple.

snogirl

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Re: Personal injury lawsuit after auto accident
« Reply #2 on: August 06, 2018, 09:41:15 PM »
Go with your gut, instincts, intution whatever you want to call it. Only you can decide. I'm sorry to hear about your accident.

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electriceagle

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Re: Personal injury lawsuit after auto accident
« Reply #3 on: August 07, 2018, 06:36:50 AM »
I was involved in an accident a few years ago which landed me in the hospital for a week with several injuries which required surgery and 6 months of physical therapy.  Both insurance companies found me 0% liable, and the at-fault driver was not injured. I am quite well all things considered; but still have some shoulder pain one rib with a likely permanent non-union.

I did reach out to an attorney some time ago, who is awaiting my decision-- the basics are that:
95K - Bills paid by my health insurance (which falls under ERISA subrogation)
12K - Lost wages/ medical bills paid by me.
30K - At-fault drivers liability coverage
100K - my underinsured motorist coverage
10%-33% of settlement - attorneys fees based on how much time is put into the case.

My employer health plan falls under ERISA law; which states they have a right to any settlement until they are 100% reimbursed, before anything (lost wages, attorneys fees, etc) can be recovered.

I have been presented with two options:
1) Sue the at-fault parties for amounts beyond insurance policy limits.

2) Settle- but before settling attempt to negotiate a reduction on the subrogation lien with health insurance\employer (not likely to succeed) to accept a smaller portion than 95K.

The at-fault driver is a complex situation involving three people- (driver, owner, insurance policy holder) and a likely sham title transfer after the accident. The owner did not have insurance on the vehicle (against state law), so only the driver/insurance policy holders 30K liability policy exists.

If I attempt to settle, I could be left with anywhere between ~10-50K.  If I sue, a lot of money could be in play; but at what cost to another family?  My conscience is getting the best of me right now and I would feel terrible taking what could amount to 100K+ of money from someone who does have much in terms of assets (based on legal discovery). I am not sure I could sleep well at night and that I want to go through the stress of a lawsuit.

How does one begin to make a decision like this?

Do the 100K uninsured motorist and 30K other drivers liability sit on top of each other (130K) or does only the largest come into play (100K)?

Most people who don't bother getting car insurance also don't have any significant assets. Even if you win a lawsuit, you might not have to worry about "taking what could amount to 100K+ of money from someone" as they probably don't have anything. Also, their legal fees will eat up their 30K liability policy.

Juslookin

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Re: Personal injury lawsuit after auto accident
« Reply #4 on: August 07, 2018, 07:14:37 AM »
1. Legal fees do not come out of the $30,000. limit, those are expenses and are from a different pot
2. You are missing a very important piece of information, assets.  If the at fault party has nothing then you are losing sleep over nothing.
3. The Erisa lien can ALWAYS be negotiated.

I would make the best deal you can with the actual money involved which is the insurance money.  Is the 100 Uninsured the actual limit or do you own more than one car and have the limits stacked 100 x number of vehicles?

Good Luck.

Fuzz

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Re: Personal injury lawsuit after auto accident
« Reply #5 on: August 09, 2018, 08:49:00 PM »
1) Talk to several lawyers. The 10% contingent fee if the lawyer doesn't do as much work is unusual in my market. Are you dealing with a friend, or an inexperienced lawyer? That's weird enough to be a red flag for me. If an attorney files a lawsuit, 33% is common.

2) Watch the statute of limitations. In some states it's 2 years from the accident; in others it's 4 years. Who knows what it is in your state, and if any special concerns apply (i.e. if you're suing a professional driver, arguably a different statute of limitations applies in my state).

3) ERISA liens are negotiable. But it may be hard to push the discount below the attorney's fees. Talk to a couple people with recent experience in your area. I am familiar with a state where an attorney can easily negotiate to get liens reduced, but folks representing themselves never can.

4) Based on the medicals and the available insurance, if you settle and walk away with 50K your attorney hit it out of the park.

5) If the other guys don't have assets, the only available money is the insurance policy. Spend a couple bucks and do an asset search. If they have assets (like a home), then they may have an umbrella policy. You won't be certain whether there is an umbrella until you're in litigation.

Paul der Krake

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Re: Personal injury lawsuit after auto accident
« Reply #6 on: August 09, 2018, 08:55:07 PM »
5) If the other guys don't have assets, the only available money is the insurance policy. Spend a couple bucks and do an asset search. If they have assets (like a home), then they may have an umbrella policy. You won't be certain whether there is an umbrella until you're in litigation.
Don't all umbrella carriers require much higher auto coverages than 30k?

Finances_With_Purpose

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Re: Personal injury lawsuit after auto accident
« Reply #7 on: August 09, 2018, 09:05:47 PM »
5) If the other guys don't have assets, the only available money is the insurance policy. Spend a couple bucks and do an asset search. If they have assets (like a home), then they may have an umbrella policy. You won't be certain whether there is an umbrella until you're in litigation.
Don't all umbrella carriers require much higher auto coverages than 30k?

Yes.  Almost certainly. 

rbuck

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Re: Personal injury lawsuit after auto accident
« Reply #8 on: August 10, 2018, 08:50:30 AM »
Okay I'm going to I'm going to put on the my adjuster hat here. A couple of thinks that jump out is whether your state determines a driver is underinsured based on the at-fault driver's limits as they relate to damages or based on the at-fault driver's limits as compared to your limits. So in scenario one you would be entitled to $130k ($30k from at-fault insurance, $100k form UIM) and in the second scenario you would be entitled to $100k ($30k from at-fault insurance and $70k from UIM).

The attorney fees sounds really low and is not how a typical attorney contract reads in any of the states that I have handled claims. The usual agreement states that the attorney is owed 33% if the case is settled without litigation. If the case is litigated then the contract usually stipulates that the attorney is owed a higher percentage (I've seen 40% - 50%) of the recovery plus the costs/expenses incurred by the attorney is presenting the case. Some newer attorneys might have a lower contingent fee to attract business and some attorneys will lower their recovery if their client if they are actually going to make more money off the settlement than what the client does but I would be extra wary of the attorneys with low contingency fees.

The biggest issue here is whether any of the parties that have any assets. I would try and find an attorney and pay they to do a Lexis Nexis search on any property they own. If they don't have much then I wouldn't even bother trying to recover from them, just take the insurance money and cut your losses. I would take a shot at getting the health insurance lien reduced by talking to the subrogation adjuster to see about a slight decrease in the bill. So here are how the two scenarios could play out with me knowing nothing about the specific injuries.

Scenario 1 (Settlement)
Take Insurance Money:                          $130,000
Take to Health Ins get $10k reduction:   ($85k)
Less Wages/Self-Pay Bills:                     ($12k)
Net:                                                     $33,000

Scenario 2 (Trial)
Verdict:                                                $400,000
Attorney Fees:                                       ($160,000) [I am assuming 40% which is typical for a case that goes to verdict]
Health Insurance Lien:                           ($95,000) [They usually don't want to negotiate after a verdict as they have statutory rights]
Your Out of Pocket Expenses:                 ($12,000)
Depositions:                                          ($5,000) [If you want to prove a sham transfer then you're going to have to depose them all]
Medical Expert:                                      ($7,500) [You have to have medical expert speak about the nature of the injuries]
Assume 1 more expert:                          ($7,500)
Court Costs:                                          ($2,500)
Maybe hire PI:                                       ($2,000) [Again you have to prove sham transfer]
Net:                                                      $108,500

Okay so two or three years down the road the case has been finally reached a verdict and you are better off by $75,500 than you were before the accident right? Maybe. The verdict will be converted to a judgment and then the Defendants will likely say sorry we don't have the money. The court doesn't really help in collection so you will have to do two things. First the Defendants are sometimes deposed about what assets they have to determine if there is any recovery potential. You could file a garnishment action and have money directed from their bank accounts/job to you until the judgment is satisfied. The problem with that is you have to file the garnishment every time they change jobs or a bank.

I've obvious made some assumptions here but on its face it appears that the insurance money is enough to pay back your out-of-pocket expenses but not much else. While that sucks at least the accident shouldn't cost you anything financially. Whatever you choose the best of luck to you.
 

patchyfacialhair

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Re: Personal injury lawsuit after auto accident
« Reply #9 on: August 10, 2018, 09:41:08 AM »
Is there a downside to suing, financially?

If there's no downside (i.e. you won't be out any more money if it turns out badly for you), then I would sue. You have a real life, permanent impact on the rest of your life, and it's not going away. Suing will allow you to at least know that you did everything you could to make yourself whole again.

MrThatsDifferent

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Re: Personal injury lawsuit after auto accident
« Reply #10 on: August 10, 2018, 01:26:21 PM »
Okay I'm going to I'm going to put on the my adjuster hat here. A couple of thinks that jump out is whether your state determines a driver is underinsured based on the at-fault driver's limits as they relate to damages or based on the at-fault driver's limits as compared to your limits. So in scenario one you would be entitled to $130k ($30k from at-fault insurance, $100k form UIM) and in the second scenario you would be entitled to $100k ($30k from at-fault insurance and $70k from UIM).

The attorney fees sounds really low and is not how a typical attorney contract reads in any of the states that I have handled claims. The usual agreement states that the attorney is owed 33% if the case is settled without litigation. If the case is litigated then the contract usually stipulates that the attorney is owed a higher percentage (I've seen 40% - 50%) of the recovery plus the costs/expenses incurred by the attorney is presenting the case. Some newer attorneys might have a lower contingent fee to attract business and some attorneys will lower their recovery if their client if they are actually going to make more money off the settlement than what the client does but I would be extra wary of the attorneys with low contingency fees.

The biggest issue here is whether any of the parties that have any assets. I would try and find an attorney and pay they to do a Lexis Nexis search on any property they own. If they don't have much then I wouldn't even bother trying to recover from them, just take the insurance money and cut your losses. I would take a shot at getting the health insurance lien reduced by talking to the subrogation adjuster to see about a slight decrease in the bill. So here are how the two scenarios could play out with me knowing nothing about the specific injuries.

Scenario 1 (Settlement)
Take Insurance Money:                          $130,000
Take to Health Ins get $10k reduction:   ($85k)
Less Wages/Self-Pay Bills:                     ($12k)
Net:                                                     $33,000

Scenario 2 (Trial)
Verdict:                                                $400,000
Attorney Fees:                                       ($160,000) [I am assuming 40% which is typical for a case that goes to verdict]
Health Insurance Lien:                           ($95,000) [They usually don't want to negotiate after a verdict as they have statutory rights]
Your Out of Pocket Expenses:                 ($12,000)
Depositions:                                          ($5,000) [If you want to prove a sham transfer then you're going to have to depose them all]
Medical Expert:                                      ($7,500) [You have to have medical expert speak about the nature of the injuries]
Assume 1 more expert:                          ($7,500)
Court Costs:                                          ($2,500)
Maybe hire PI:                                       ($2,000) [Again you have to prove sham transfer]
Net:                                                      $108,500

Okay so two or three years down the road the case has been finally reached a verdict and you are better off by $75,500 than you were before the accident right? Maybe. The verdict will be converted to a judgment and then the Defendants will likely say sorry we don't have the money. The court doesn't really help in collection so you will have to do two things. First the Defendants are sometimes deposed about what assets they have to determine if there is any recovery potential. You could file a garnishment action and have money directed from their bank accounts/job to you until the judgment is satisfied. The problem with that is you have to file the garnishment every time they change jobs or a bank.

I've obvious made some assumptions here but on its face it appears that the insurance money is enough to pay back your out-of-pocket expenses but not much else. While that sucks at least the accident shouldn't cost you anything financially. Whatever you choose the best of luck to you.

This is an amazing analysis and you canít get better info than this. Iím continually surprised by the generosity of the people on this board.

robartsd

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Re: Personal injury lawsuit after auto accident
« Reply #11 on: August 10, 2018, 02:00:48 PM »
I wouldn't sue, because the chance of collecting is too low (unless you know one of the 3 responsible parties has deep pockets). If that assets are there to collect, no reason to feel guilty about suing - your insurance company would go after them to cover their lost from paying out uninsured motorists claim.

Clearly liability is > 30K so driver's insurance isn't likely to put much effort into this case - they know write the 30k check and be done.

I'd be discussing settlement terms with your insurance company - try to get their weight behind any ERISA lien negotiation. They might willing to help you get a bigger piece (making you a happier customer) even if they're out 100k either way.